Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
CNN is reporting that Justice David Souter will retire from the U.S. Supreme Court at the end of the court's term in June, presenting President Obama with his first opportunity to fill a vacancy on the high court.
This is a bit of a surprise, though not entirely. Souter is not one of the older justices on the court, but he quite famously dislikes living in Washington DC and those close to him have long said that he wishes to return to his beloved New Hampshire. Still, most observers assumed that the first vacancy would be from the retirement of either John Paul Stevens, the oldest member of the court at 88 years old, or Ruth Bader Ginsburg, the second oldest at 76 who has been battling pancreatic cancer.
In February, when Ginsburg was diagnosed with that dreaded disease, I speculated about possible appointments to replace her. It was a mortal lock then that she would be replaced by a female justice, but I don't think Souter's retirement changes that analysis. I still think the first appointment will be a woman and will likely be one of three choices: current Solicitor General Elena Kagan; appeals court Judge Sonia Sotomayor; and Leah Ward Sears, Chief Justice of the Georgia Supreme Court.
The $64,000 question at this point is this: Will there be two vacancies on the court this summer? Or even three? That would make for a long, hot summer in Washington DC.
Politics
Comments
I generally liked Souter, with the exception of his stance in the recent eminent domain cases. I'm sorry to see him go as a Justice. The first article I read on this also speculated a female nominee as a lock, listing the same names you did. I agree that it'll be a key move. I doubt Ginsburg will drop out soon, though. If she's aggressive against the cancer, and it goes well, she's likely got at least another year in the robes. Pancreatic cancer can shift damn quickly, though.
Posted by: Ranson | May 1, 2009 9:15 AM
Is it wrong of me to enjoy the wailing and gnashing of teeth this will cause among the wingnut brigade?
Posted by: Russell | May 1, 2009 9:27 AM
yikes
Posted by: Rev. BigDumbChimp | May 1, 2009 9:32 AM
As a replacement for Souter, I believe Judge Jones (of Kitzmiller vs. Dover fame) deserves, at the very least, serious public consideration. I'd love to see how the Grand Old Infantilizers melt down when faced with the Lutheran Shrub-appointee who gave creationism its latest big smackdown.
Posted by: Raging Bee | May 1, 2009 10:01 AM
1) Senate confirmations will go a lot more smoothly if Al Franken is appointed in Minnesota.
2) I think it's time for a nonbeliever on the bench. It's clear that in a number of church-state cases, a certain portion of the bench is giving the old wink, wink, nudge nudge; and having to deal with a nonbelieving colleague might straighten them up.
Posted by: Reginald Selkirk | May 1, 2009 10:02 AM
I just hope Obama makes his (3?) picks young and liberal. I hope he doesn't wimp out with moderate nominees - the SC needs balance.
Posted by: Gingerbaker | May 1, 2009 10:07 AM
While it would be interesting/nice to see some of the die-hard conservatives be replaced, this news makes me think what might have been had the McCain/Palin ticket been successful. Imagine if two or three of the liberal judges were replaced by another Republican administration, especially one which had actively courted the theocratic votes?
Dodged a bullet there. Let's hope that Obama doesn't try too hard to placate (appease?) opponents when selecting new judges.
Posted by: Tyro | May 1, 2009 10:16 AM
I agree with Reginald that it would be nice to see some non-believers on the top bench. That should be phrased "again," rather than "it's time." Oliver Wendell Holmes, Jr, was an atheist. It says something sad about the insertion of religion into politics that that didn't cause a furor when he was nominated.
Posted by: Russell | May 1, 2009 10:26 AM
This breaks with tradition doesn't it? Souter was nominated to the Supreme Court by a republican. Traditionally Supreme Court justices tend to leave under the party that nominated them (unless they die of course).
Posted by: yoshi | May 1, 2009 10:27 AM
Gingerbaker stated:
I am highly confident Obama will nominate liberals; I'd argue the more interesting question is what kind of liberal he'll nominate - a statist who'd have voted for government power like we saw in Kelo and Raich, or instead a libertarian that would have defended the individual in both of those cases (Disclaimer: I agreed with the majority in Kelo, but I'm not a libertarian, though highly respectful of most of their arguments which always inform my positions, and am probably biased given I'm a real estate developer).
Like Ed, I'm perfectly bored with the abortion debate given there are far more interesting litmus tests. However I wish the Senate Judiciary Committee would pass to the floor only those nominees who expressed a clear position on Roe and other critical past rulings. Supreme Court nominees' interpretative methods and positions are the most paramount factors we need to understand, not those we should studiously avoid as we mostly do now, or hypocritically claim we avoid while not (e.g., Bush on Roberts, Meiers, and Alito).
If you look at how some UK political scientists rate Obama on their political compass, as a U.S. liberal with an authoritarian bent, which in Europe would equate to center-right with modest authoritarian tendencies, one would argue Obama will tend to nominate mostly statists. I'd prefer liberal libertarians more in the bent of Randy Barnett, a school of thought Obama would have definitely been exposed to given his association with the U. of Chicago - though most of them lean conservative libertarian, there are exceptions who are more liberal.
Posted by: Michael Heath | May 1, 2009 10:30 AM
Tyro,
Justice Blackmun, appointed by Nixon, retired when Clinton was pres. Like Souter, he was more liberal than his appointing president expected. So that factor may play into their decisions.
But when it comes to Supreme Court studies, there's still a lot of guesswork about how justices actually approach things, because they're so insular and, compared to the rest of the government, reclusive that it's hard to make definitive generalized statements about them.
Posted by: James Hanley | May 1, 2009 11:05 AM
Michael,
When you use the word 'libertarian', do you mean a civil libertarian or Libertarian (like the political party/philosophy)? I have not found the two terms to be wholly synonymous.
It seems like you meant a capital L Libertarian in your post, and I think that from a SC perspective, the two types of libertarians could well have very different approaches to the same issue. :)
Posted by: Gingerbaker | May 1, 2009 11:16 AM
Re raging bee
I might consider Judge Jones as a replacement for somebody like Scalia. Despite his performance in the Dover trial and the likelihood that the attacks on him from the right for that performance might tend to push him to the left, his political affiliations before he ascended the bench were a conventional Rethuglican conservative so that replacing Souter with Jones is not a good idea.
Posted by: SLC | May 1, 2009 11:17 AM
Re Michael Heath
Although most folks are probably in agreement with Mr. Heath that the abortion argument has become boring in the extreme, the unfortunate fact is that the number of single issue partisans on both sides of the issue make it a certainty that it will cause the most controversy, no matter who the president selects. The anti-abortionists in the Rethuglican Party have run off anybody like Senator Spector who was even mildly pro-choice while anti-abortionists like Senator Bob Casey are barely tolerated in the Democratic Party.
Posted by: SLC | May 1, 2009 11:22 AM
SLC: Can you give some examples of specific actions by Jones, on or off the bench, that make him "a conventional Rethuglican conservative?"
Posted by: Raging Bee | May 1, 2009 11:36 AM
Gingerbaker asked:
Small 'l' libertarian, a good example would be Randy Barnett. I try to be careful in always using the small 'l' when describing the ideology to separate it from the capital 'L' political party.
A guy like Barnett brings his own set of baggage from a political perspective and would be a more apt pick for a secular conservative - who for the most part have died out. While Barnett is a fierce defender of civil rights, he also argues like J. Thomas, and correctly so I think, that the interstate commerce clause is interpreted in an overly broad manner. Overturning precedents in this area would lead to overturning the Clean Air Act and other regulatory business and environmental prohibitions Americans overwhelmingly support, including Barnett even though he believes those are unconstitutional encroachments of federal powers.
I am confident that a guy like Barnett would never be considered by a guy like Obama unless Obama decided for some reason he had to pander to the right in a judicial nomination. I certainly don't believe he has to do that in the current environment. But I'm also hoping that Obama doesn't nominate a knee-jerk statist liberal given my fierce objections of them looking for the individual to prove a right rather than the state having a power which was legistatively derived like we see from Souter, Ginsburg, Breyer and ocassionally Stevens (and of course from Scalia, Roberts, and Alito - but that is part of their defining ideology given their fealty to democratic conservatism).
Posted by: Michael Heath | May 1, 2009 12:23 PM
SLC - I agree abortion remains an important litmus test while noting it stifles debate and leads to extreme positions when thoughtful nuances exist. I think the way to dilute its power as a litmus test is for the Senate Judicial Committee to force all nominees to stake a position on their interpretative techniques and positions on a whole host of important precedents.
Certainly social conservatives would bellow if someone like O'Connor were forced to note her pro-choice position, but they'd also be forced to argue that within a much broader framework of all her positions. Given nominees are not forced to expose their positions on anything, abortion rises to the top of the debate unchallenged, plus we get a justice with no clue as to how good the very factors we're nominating them to use often go unknown.
Posted by: Michael Heath | May 1, 2009 12:34 PM
3 to 2 on Kagan, if anyone's willing. She has the huge advantage of having already been through Senate confirmation. As an added bonus, I think she would make a fine Justice.
And I know I'm the lone dissenter on this site, but Kelo was correctly decided, despite the activist tendencies of Scalia, Thomas, & Co.
Posted by: kehrsam | May 1, 2009 12:57 PM
Re raging bee
Judge Jones is a protege of former Governor Tom Ridge, a moderate conservative, who, by the way, was actually less anti-abortion then Senator Caseys' father when he was governor. I suspect that his positions were probably much like former Governor Ridges', i.e. moderately conservative. Again, this may not be indicative of what kind of ideology he would bring to the bench if selected for a Supreme Court slot. We need only recall the late Justice Blackmun who turned out far more liberal on the court then he had been before and the late Justice Frankfurter who turned out far more conservative on the court then the New Dealer he had been before.
Posted by: SLC | May 1, 2009 1:03 PM
kersham - as noted previously (though in a long post), I too support the ruling in Kelo given how it defined powers states have to protect the rights of property owners.
Posted by: Michael Heath | May 1, 2009 1:16 PM
Kehrsam, is that on the nomination or on making it onto the SC? I’ll put $40 on her not getting Souter’s seat. Though since I’m nice I’d be willing to go with this bet instead, I’ll take Sotomayer and you keep Kagan, even odds. If neither gets nominated for Souter’s seat and someone else gets confirmed, all bets are off.
Posted by: Abby Normal | May 1, 2009 1:35 PM
Sorry, I meant even odds on getting the nomination. That is, the bet ends as soon as one of them is nominated for Souter's seat or someone else is confirmed.
Posted by: Abby Normal | May 1, 2009 1:39 PM
Leah Ward Sears would make a fine member of SCOTUS, methinks. I don think neither Sotomayor or Kagan have enough bench experience for the job, frankly - although Kagan does have a fine legal mind. Obama has previously said that he would like someone on the bench with actual life experience, not just an academic. I've also heard speculation based on things Obama said in interviews last year that he would like someone who has been an elected official at some point, just because the perspective of someone who's been on the ground of a political campaign would be valuable in the tangled thicket of election law (which often finds its way to the SCOTUS, with some significant impact - q.v. Bush v. Gore).
Posted by: G Felis | May 1, 2009 2:27 PM
NOT SOUTER!
Posted by: James F | May 1, 2009 3:01 PM
I have to agree with Michael, while reproductive rights remain an important issue, there are other issues that are growing in importance. Two perfect examples, from recent events, would be same sex marriage and the attempts by the religious right to force their faith into the classroom. It would be truly tragic if Obama nominated someone with the right position on women's right to choose who then turned out to be a raging homophobe or dedicated to teaching religion in science classes. While those combinations are rare, the possibility remains.
We also have the questions regarding civil liberties, 4th amendment and wire tapping, views on eminent domain, other civil rights questions, etc. To have the process dominated by the single issue would be, IMO, a grave mistake.
Posted by: dogmeatib | May 1, 2009 3:32 PM
Kagan would have been my odds-on favorite 3 months ago, but her confirmation fight as Solicitor General was much tougher than I expected. She got 31 votes against her, much higher than I ever imagined she would. Even Specter voted no. Now I'm leaning toward Sotomayor or Sears. Both would be historic nominations (first Hispanic justice, first African-American woman). And I'm absolutely sure it's going to be a woman. Even Bush was adamant at having a second woman on the court; he only settled on Alito after Miers and several other floated names crashed and burned on the altar of political reality.
Posted by: Ed Brayton | May 1, 2009 4:33 PM
Michigans' Governor Grantholm has also been mentioned in the press and blogasphere. What say the Michiganders Mr. Brayton and Mr. Heath to a Grantholm nomination?
Posted by: SLC | May 1, 2009 6:42 PM
SLC - I think its politically expedient not to associate with Granholm in any capacity given the state and degradation of Michigan on her watch, whether deserved or not (and I think its somewhat undeserved). I also find Granholm to be the CEO-cheerleader type, a la' John Chambers of Cisco. I personally favor people with proven functional skills over cheerleaders, especially given the nature of the job and its success factors.
IMO Granholm should serve in a judicial capacity first and prove herself there if she wants a career path to the SCOTUS, preferably the federal appellate court with some good mentors. I don't find her Michigan attorney general experience nearly relevant enough to deserve mention for the SCOTUS.
I'm disappointed more federal appellate court justices and academics are not more heavily considered. I'd rather see judges and thinkers on the court rather than advocates and partisans. Scalia and Kennedy are not challenged nearly enough and I believe Scalia's influence would decrease with more peers that are relatively more well-versed in the history of jurisprudence challenging Scalia's opinions; which I find are often crafty rhetorical arguments posing as originalism.
I also love Stevens' opinions when he out-originals Thomas and especially Scalia while arriving at the opposite conclusion; his dissent in Heller was particularly devastating while the majority basically argued for their optimal political policy, which was a moderate one at that. We need more like him though I think "him" needs to continue to be females until we get at least three on the bench prior to a President stopping the use of gender as a factor.
Posted by: Michael Heath | May 1, 2009 8:59 PM
Michael Heath: I agree with you on the issue of appointing justices with clear views on issues. Is it really a wise idea to choose the ultimate arbiters of our law based on how capable they are of using sophistry to give empty statements substance?
Posted by: Julian | May 1, 2009 11:18 PM
I would be against a Granholm nomination because she would be a vote for the dark side of SCOTUS on Seperation issues. Starting her own faith based initiative by fiat, reinstating Arbitrary Dating (AD Anno Domini) on State documents and posting a 10 Commandment monument at the Michigan Supreme Court building are some examples of why I feel this way.
Politacally, it would be a good move for the Dems. Term limits mean that she will be job hunting in 2010. Her replacement designate, Lt. Gov. John Cherry is getting trounced in every poll vs. the Republican candidate possibilities. While I know polls don't really mean squat until October 2010, it still looks bad. If he were to replace Granholm after she goes to the court, he would be able to run as an incumbent and if the Economy improves enough, he might get some credit for it, even if all he did was stand out of the way.
It would be a way for the Democrats to hold on to the seat. Especially after trafing Specter's seat for a possible vote for (A probably severly watered down version of) Health Care.
Posted by: teammarty | May 2, 2009 1:28 AM